The Buck Stops Here

Saturday, November 30, 2002

Glenn Reynolds has updated his blogroll, I see. Among the blogs he added, however, one was conspicuously missing. (Hint: you're reading it.) And to think that when I first started blogging (before having to quit for a while), his blogroll looked like this, with me as the 7th blogger that he had added to the list. Ahhh, those were the days . . . .

Friday, November 29, 2002

It's recently come to my attention that Jingle Bells was originally a song for Thanksgiving, not Christmas. According to Reader's Digest:

James Pierpont wrote it in 1857 for a Thanksgiving program at the large Boston church where he taught Sunday school. He titled his song "The One-Horse Open Sleigh" and made the rhythm so jaunty and the words so catchy that his 40 little Sunday schoolers learned it almost instantaneously. * * * The children's first performance was such a success that they were asked to repeat it at Christmastime, whereupon the sleigh apparently took on the identity of Santa's sled, and "Jingle Bells" became a Christmas song forever.

Which is totally unfair. We Americans don't have any good Thanksgiving songs. And it's not like Christmas needs any more songs anyway. Return Jingle Bells to Thanksgiving where it belongs!

Paul Krugman -- in his twice-weekly column in the New York Times -- writes once again to lambaste the biases of corporate media.

For most of the last 50 years, public policy took it for granted that media bias was a potential problem. * * *
The answer was a combination of regulation and informal guidelines. The "fairness doctrine" forced broadcast media to give comparable representation to opposing points of view. Restrictions on ownership maintained a diversity of voices. And there was a general expectation that major news outlets would stay above the fray, distinguishing clearly between opinion and news reporting. The system didn't always work, but it did set some limits.

Over the past 15 years, however, much of that system has been dismantled. The fairness doctrine was abolished in 1987. Restrictions on ownership have been steadily loosened, and it seems likely that next year the Federal Communications Commission will abolish many of the restrictions that remain — quite possibly even allowing major networks to buy each other. And the informal rule against blatantly partisan reporting has also gone away — at least as long as you are partisan in the right direction.

The F.C.C. says that the old rules are no longer necessary because the marketplace has changed. According to the official line, new media — first cable television, then the Internet — have given the public access to a diversity of news sources, eliminating the need for public guidelines.

But is this really true?

Though he doesn't say this in so many words, it appears that Krugman favors the return of the fairness doctrine, or at least thinks it had a salutary effect during its reign.

But is that really true? The former head of CBS, Fred Friendly, describes the real effects of the fairness doctrine in his excellent book The Good Guys, the Bad Guys, and the First Amendment (1975). Friendly recalls an extensive monitoring scheme set up by the Democratic National Committee for the very purpose of stifling right-wing broadcasters by issuing fairness doctrine demands. Wayne Phillips, a housing official in the Kennedy-Johnson administration, headed the monitoring operation. To quote Phillips: “Even more important than the free radio time was the effectiveness of this operation in inhibiting the political activity of these right-wing broadcasts . . . .” Id. at 41 (quoting Wayne Phillips).

Martin Firestone, an FCC lawyer at that time, wrote this in a memo:
The right-wingers operate on a strictly cash basis and it is for this reason that they are carried by so many small stations. Were our efforts to be continued on a year-round basis, we would find that many of these stations would consider the broadcasts of these programs bothersome and burdensome (especially if they are ultimately required to give us free time) and would start dropping the programs from their broadcast schedule.
Id. at 42 (quoting Martin Firestone).

So the fairness doctrine arose not because of some high-minded desire for fairness, but because Democrats in the Johnson administration wanted a weapon to stamp out right-leaning media sources.

Something else Krugman ignores -- the empirical evidence shows that while the fairness doctrine was in effect, it actually resulted in less diversity of opinion, not more. The reason is fairly obvious. If by expressing an opinion of any stripe on the air you open up the floodgates for other people to demand "equal time," you become wary of taking on political issues at all. After the fairness doctrine was abandoned, the media generally began covering political issues in more detail and with a greater diversity of opinion, as has been resoundingly demonstrated by Thomas Hazlett and David Sosa in two academic articles: Was the Fairness Doctrine a 'Chilling Effect'? Evidence from the Post-Deregulation Radio Market, from the Journal of Legal Studies, and "Chilling" the Internet? Lessons from FCC Regulation of Radio Broadcasting, from the Michigan Telecommunications and Technology Law Review. (Both are PDF files.)

Is Krugman simply unaware of this empirical research? Or does he secretly yearn for the days when Johnson administration lawyers tried to run right-wing radio stations out of business? I report, you decide.

Thursday, November 28, 2002

Wednesday, November 27, 2002

The reason for the mix-up in my post on crunchy-cons was that I had not yet seen Rod's response to Jonah's column. Like Jonah, I took his original article to mean something different than he suggests in his follow-up. Now that I know crunchy-cons are essentially conservatives with anti-consumerist sensibilities, I better understand why he feels alienated from Mainstream Conservatism As Practiced (and every other "mainstream" American association). I'll explain why crunchy-cons are wrong to decry Wal-Mart on another day.

Tuesday, November 26, 2002

I'm not sure I'm reading Matt Evans's post below correctly, but I'm not sure that Rod Dreher's point is necessarily to express his own surprise at the existence of "crunchy" conservatives. His whole exploration of this idea/phenomenon began when he mentioned to a fellow conservative that he was buying some organic vegetables, and her response was, "Ewgh, that sounds so lefty." One of his points, I take it, is that there are a lot of establishment conservatives who will sneer at something -- something which may, in fact, be more truly "conservative" -- just because some left-wing people like it.

On Crunchy-ConservativesI was relieved to have Jonah Goldberg pipe in on crunchy-conservativism, as he articulated my thoughts much better than I could have done. My first impression after reading Rod's original article was that he was completely out of touch, perhaps due to living on Long Island, with the broad swath of American conservatism. My second thought was that perhaps it was I who was totally at odds with reality. Then Jonah wrote his column, validating my reaction. Anyway, many of the descriptions of crunchy-cons conform perfectly to what I perceive is the media's archetypal conservative. Many of the alleged irregularties are quite regular. Take the Buck family, introduced below, for example. It's hard for me to believe that most Americans would be surprised to learn that there are conservatives among those who grew up on small farms "drinking milk straight from the cow". Adding that the Buck parents limited their kids' exposure to Three's Company, MTV, and KISS doesn't make their admission that they're conservative a shocker either.

When Rod announced that he was coming to the Washington area to research and write his book, he invited crunchy-cons to contact him for possible interviews. I think we're what he's broadly looking for: only a 13" television (no cable either, and the antenna's even broken); tons of books on the shelves, over the shelves, and flowing off the shelves; a completely stripped model car; a belief that our culture is far too materialistic; and I take the Metro to my firm even though most people drive. To top it off, Grape Nuts is my cereal of choice. (Though I soak them in milk for 5-6 minutes to spare my gums). Still, no one who spent an hour in our home would express dismay to find out that I'm a pro-lifer and an all-the-way-down-the-ballot Republican.

Maybe it's because I don't eat my Grape Nuts right out of the box. Or maybe it's the "Smile, your mom chose life!" sign in the car window.

Those who expect the Court to lead a revival of federalism are looking in the wrong place. Indeed, Nagel argues, the true measure of federalism’s weakness consists precisely in the belief that we must look to the Court to make things right. The decline of federalism and the rise of judicial supremacy, in short, are the opposite sides of a single coin.

A truly robust federalism, in Nagel’s view, requires not only a legal structure conducive to its maintenance, but a settled disposition on the part of the people in favor of local diversity and prerogative, and a disciplined love of liberty that transcends the desire for immediate gratification. None of these, he says, are to be found in great abundance these days. Instead, he finds a desire to avoid risk, an impatience with conflict, and a servile yearning for simple solutions decreed by centralized authority. These are not the hallüarks of a people that wishes to remain free. Indeed, says Nagel, “we may be witnessing the rapid realization of Tocqueville’s foreboding vision of a mass of striving but discontented individuals ‘endeavoring to procure . . . the pleasures with which they glut their lives’ under the shadow of one ‘immense and tutelary power.’”

Last night, thanks to an invitation from my friend Tom Spence of Spence Publishing, my wife and I (and a few other couples) got to hang out for a couple of hours with National Review's Rod Dreher and his wife Julie. Rod talked about his book-in-progress on so-called "crunchy conservatives." (See his previous articles on the same here and here.) I'm not too sure I like the term itself, as it seems to imply a group of people defining themselves by an odd intermixture of politics and dietary preferences, but it seems to have stuck (judging from extensive discussions among bloggers so far). And I suppose that it's better for a term to be memorable, to stick in one's mind, even if it's not the most technically descriptive term one could think of. In any event, it was quite an intellectually stimulating evening. Rod talked for 10 or 15 minutes, and then we all spent the next hour or so in discussion and debate.

On a more personal note, what I realized after hearing Rod talk is that I come from the ultimate "crunchy" conservative family. When I was growing up, my parent subscribed to the Mother Earth News. My mom sometimes bought 50-pound sacks of wheat, ground it into whole wheat flour, and made bread -- in comparison to which all store-bought bread, no matter how expensive, tastes like a kitchen sponge. We used to get milk from a old woman out in the country who had a few cows. (It all probably had something to do with the fact that my mom grew up on a small Arkansas farm, where drinking milk straight from the cow and making your own bread was just part of life.)

We went for a few years without a television, and my parents were always suspicious of popular culture (instead they lined practically every wall of every room with bookshelves). And my parents homeschooled starting in 1980, long before homeschooling became the popular phenomenon it is today. What Rod is getting at is that there are people who in some ways live like left-wing hippies on some sort of anti-establishment kick, but who are deeply conservative, religious people. I suppose that's why I find the idea fascinating, and look forward to the book's publication.

Sunday, November 24, 2002

I've been out of town for the past couple of days. I went to DC on Friday to play the role of "Supreme Court Justice" for a moot court intended to prepare a Supreme Court lawyer for a real, upcoming argument before the Court. The event was sponsored by the Georgetown Supreme Court Institute. It was the first time I've been a judge in a moot court, and it was great fun.

And then it was off to the real Supreme Court building to meet a good friend of mine who's clerking for Justice Scalia. He was charged with giving me a private tour of the building, something I'd never experienced before. It's quite an ornate and imposing building, much more so than any other federal courthouse I've ever visited or worked in. The Justices' private dining room just reeks of Old World elegance. And the courtroom surprised me at how intimate it seemed. The podium for the oral advocates is practically in the Justices' faces, again unlike any other federal courtroom I've seen. And then, of course, there was the "highest court in the land," the basketball court on the top floor. Not much to see, actually; it's not that great of a court; but still kind of cool.

Anyway, that's what I've been up to.

UPDATE: I see that Howard Bashman has linked to this post. I'm afraid the post isn't quite as tantalizing as his "behind the scenes" comment might have implied. So I'll add one little thing: Having talked to several Court clerks, I can say that journalists aren't the only ones speculating about a Rehnquist retirement. (That's all it is, though, at this point: Speculation. No one knows anything for sure, and the clerks generally don't discuss such matters with their Justices.)

Wednesday, November 20, 2002

So I was hanging out with my son Ethan (3 yrs, four months) the other night. We did a little work on his reading skills (he can read some simple words), and then turned to some very simple math. "What's one plus one?" I asked him. Furrowed brow. Then came the answer: "Eleven."

So the kid needs a little work on his addition, that's for sure. But at least he added "one" and "one" in some fashion.

Justice Thomas is having a literary agent shop around a memoir that he has been working on. The story says that he has around 100 pages written at this point, and there is no telling when the book might be finished and released. I heard about this book-in-progress well over a year ago, but this is the first mention I've seen of it in the press. Should be an interesting story.

Tuesday, November 19, 2002

Sunday, November 17, 2002

Well, now. The very day that my piece supporting the nomination of Michael McConnell comes out, the Senate suddenly confirms him in a whirlwind voice vote. I can only assume that my devastating arguments made the Senate Democrats immediately realize the futility of their position.

Saturday, November 16, 2002

The most entertaining anecdote from the Washington Post's profile of Al Gore comes in this description of Gore walking through an airport:

[Gore] thanks her for her opinion and manages to keep moving to the curb, where he attracts the attention of a big, yellow-haired man in a gold-colored T-shirt who looks at Gore and then looks away, and then looks at him again, with wonder, as if he cannot believe what he is seeing.

Thursday, November 14, 2002

In arguing that the President's choice of judges makes a difference in difficult cases, Sam Heldman has this to say:

The case was Insolia v. Philip Morris, and the Seventh Circuit in that case said that, when a federal court is trying to figure out a question of state law, and the answer to the state law question is unclear, the default rule should be "defendant wins." Here's the quote that I'm talking about:

Though district courts may try to determine how the state courts would rule on an unclear area of state law, district courts are encouraged to dismiss actions based on novel state law claims. … When confronted with a state law question that could go either way, the federal courts usually choose the narrower interpretation that restricts liability.

If you've had a semester of law school, you'll know why that seems absurd and unfair to me; if not, I'll just say, it's contrary to everything that the Supreme Court and every other court has said about the federal approach to state-law questions for decades, and is avowedly tilted towards defendants (who tend to be corporations, the establishment) and against the plaintiffs (who tend to be consumers/workers/injured persons). And no Sam Heldman-appointee to the federal bench would ever, ever, ever, consider signing on to an opinion that included that statement.

Well, I've had three years of law school, and I'm not sure what's wrong with what the 7th Circuit said. Yes, one could characterize the court's ruling as "when in doubt, defendants lose," but what is the alternative? When a federal court is asked to rule on a state law claim that does not even exist, what should it do -- allow the plaintiff relying on the non-existent state law claim to win?

Example: A plaintiff sues in federal court, saying that Tennessee law provides a cause of action for driving too slowly in the fast lane. Should the federal court really say, "Hmmm, let's see now, no Tennessee court has recognized such a claim, but we won't let that stop us. Judgment for the plaintiff."

What the 7th Circuit did was no different. It was presented with a claim that doesn't exist under Illinois law ("intentional exposure to a hazardous substance"), and rightly said that it could not create a new cause of action for purposes of Illinois law.

Is that biased against plaintiffs? Only against plaintiffs who invent their legal claims, as opposed to relying on actual law.

Tuesday, November 12, 2002

Howard Bashman points to an article by a GMU law professor discussing possible Supreme Court picks. The usual suspects are discussed, but the most interesting bit is this paragraph:

Alternatively, the president could tap any number of solidly conservative legal scholars in academia. Short lists in this category often include Richard Epstein, from the University of Chicago; Douglas Kmiec, dean of the Catholic University law school; and Eugene Volokh, a very young candidate from UCLA's law school. Another possibility with a special appeal is Viet Dinh, a former professor at Georgetown University who now serves as an assistant attorney general in the Justice Department; Dinh, who grew up in Orange County, would be the first Asian-American appointed to the Supreme Court.

Well, I wouldn't describe Epstein as "solidly conservative." At least not in his presence, as he would erupt (as I've seen him do) into an outburst on why he is a libertarian and most certainly not a conservative. And I wouldn't describe Epstein as a possible Court pick, either. He's brilliant, no doubt about that, and could probably write most Supreme Court opinions extemporaneously. But his scholarly work would probably doom his candidacy. For example, his work on the Takings Clause (in which he basicly argues, as I recall, that the New Deal is unconstitutional) would make even most Republicans blanch.

Douglas Kmiec? A brilliant legal scholar, an exceedingly witty lecturer, and an all-round nice guy. (I suppose that having thus praised him, I should disclose that he invited me to be an adjunct professor at his law school.) But he has probably been too outspoken on his conservative legal views to make it through a closely-divided Senate. (It would be entertaining, however, to see yet another attempt by ill-briefed Senators to query a conservative candidate on his views of natural law.)

Eugene Volokh? I like the idea. Eugene is truly extraordinary in his maximization of both scholarly ability and social skills (not too many brilliant law geeks are also the life-of-the-party wherever they go). He seems to be well-respected by a wide range of legal academics, even those who vehemently disagree with him. And he is amazingly productive, almost on a Posnerian scale. Against him, though, would be his youth and his libertarian views.

Viet Dinh? Again, a brilliant man and a really nice guy who fairly bursts with energy when discussing any legal topic whatsoever. His life story is especially attractive (a Vietnam boat person who ends up at Harvard Law School and clerking for Justice O'Connor). Hard to say what his chances would be, although the Democrats would no doubt pull out all the stops to block someone who worked for Republicans in investigating both Whitewater and Clinton's impeachment. Also against him is his youth.

Sunday, November 10, 2002

SOUTH BEND -- Anyone who has a television should know the proper accent to use when saying "citizen's arrest, citizen's arrest."

But Eric Endres wasn't imitating Barney Fife Saturday night when he stopped a burglar, at gunpoint, from making off with the goods at a local computer store.

Endres does, however, have the attitude that the old Mayberry deputy had in regard to his responsibility as a law-abiding citizen.

"I have a permit to carry a firearm every day, and I carry it as a duty," Endres said. "I never know when I may catch a bad guy or save someone's life. It's a responsibility I take.

"Everywhere I go, I make people safer, and they don't know it. It's the least I can do for my society. As a good citizen, it's a little bit my responsibility to do the best I can and prevent crime. Nobody knows it, because it's always concealed, but I will always risk my life to save others."

One problem: Anyone with a television knows that it was Gomer Pyle who yelled "citizen's arrest," not Barney Fife.

Saturday, November 09, 2002

Here's something that Howard Bashman, among others, will probably find interesting. Ahmed Taha of the Wake Forest Univ. School of Law has an article coming out in the American Economic Review (the premier economics journal in the U.S.). He analyzes the factors that lead district courts to publish their opinions, as opposed to leaving them unpublished:

These analyses find that, all else equal, judges who held prior political positions, who received higher ABA ratings, who had lower caseloads, who had longer tenures, who struck down the guidelines, or who had a greater chance of promotion to a U.S. Court of Appeals were more likely to publish their decisions.

Note that Taha thanks the ubiquitous Richard Posner in the first footnote for reviewing the article. (Posner shows up in the first footnote of law review articles more often than just about anybody.)

Cass Sunstein urges the Republicans to be careful about the judges they pick, because some "conservative" judges might end up invalidating legislation that even Republican politicians supported, such as the campaign finance reform bill that Bush signed. The op-ed is basically a warning against conservative judicial "activism."

Keep in mind, though, that this is coming from a man who has written, in the New York Times no less, that the Supreme Court "has moderates, but no liberals." (To be fair, I would add that despite the implausibility of that proposition, Laurence Tribe has also said that the Court has "four justices distinctly on the right, two moderate conservatives, a conservative moderate, two moderates, and no liberals." He was testifying before Congress when he said this, so he must actually believe it to be true; although it is utterly baffling what he means by distinguishing between "moderate conservatives" and "conservative moderates.")

Thursday, November 07, 2002

For his part, Wiener comments that the university "had a kind of tunnel vision" in the way it restricted the panel's mission. "Since the issue here is Bellesiles's integrity as a historian, the Emory inquiry should have been as sweeping as the stakes, instead of being tied to a few pages in a great big book. And if Bellesiles is right in his reply, then those distinguished historians are guilty of some of the same sins they accuse him of committing: suppressing inconvenient evidence, spinning the data their way, refusing to follow leads that didn't serve their thesis. The point is not to condemn them for their inability to achieve the scrupulousness they demanded of Bellesiles. The point is that historians have to deal with the messy confusion of things, and they offer interpretations of it. Historical knowledge advances by the testing of interpretations, not by stifling interpreters, and not by indicting the interpreter's character for flaws in a table."

Tuesday, November 05, 2002

Thomas Hibbs likes the show "24", arguing that it is the best thing on in primetime. I agree. Last season was great, although I have to admit that it would have been better if the show had been titled "12." (It's tough to write 24 episodes on a single plotline.) Still, the screenwriting is quite an achievement, because everything has to happen in real time. As one of the producers recently said, on a normal show, if the hero flies from LA to New York, the camera can show him departing and then immediately arriving. On "24," they can't let the hero fly to New York unless they really want to spend five hours of the show depicting a plane ride. The challenges of 24's screenwriting remind me of the challenges Hitchcock faced in filming the Jimmy Stewart movie "Rope," where he used long, uninterrupted shots (up to ten minutes long, if I recall).

WHY REPUBLICANS ARE REDIn my post on political maps, I overlooked an obvious association with red: anger. It's only natural, then, that Red represent the media's "Party of Angry People" -- especially when so many of those angry people have red necks.

Monday, November 04, 2002

Oh, and welcome aboard to my friend Matt Evans, whose first post you will find below. He graduated from Harvard Law a year behind me, and is now toiling away at a large, respectable firm. I figure if I get enough of my classmates to join me, then even though none of us have very much time, we can put out a fine blog.

WHY DO DEMOCRATS ALWAYS GET TO BE BLUE?For starters, my name is Matt Evans and I'm a friend of Stuart's. Stuart has graciously invited me to post on his blog, something I hope to do on occasion.

Just a moment ago I was reminded of something that has irritated me for the last couple of elections: the media's choice of colors for their political maps. If you recall from the 2000 election coverage, all of the major networks began the night with a white map of the US, and as the election results were reported they would fill in the state to indicate whether Gore or Bush had won. Gore was Blue, Bush was Red. The nationwide county-by-county map that Paul Begala made famous had the same schematic: Republicans live in red counties, Democrats live in blue counties. My beef is that the media never varies from this color scheme.

Of course I know why they use red and blue rather than purple and yellow. Just as the networks' new, just-for-this-election-cycle logos are doused in American motifs, they stick with red, white and blue on the maps. [Aside: why the networks redesign their election coverage logos every year just because the Superbowl does isn't clear to me.] OK, I take that back; I actually do know why the media takes their cues from the biggest television spectacle of the year.

In any event, I understand why the media uses red and blue for the two largest political parties in America.

My complaint, then, isn't that the press isn't spinning a color wheel to decide if the Democrats will be teal or tangerine yellow in 2002. It's that Democrats always get to be blue. And if you haven't played Candyland with kids as often as I have, you may not realize that most everyone wants to be blue. In my family, for example, we take turns being blue -- since Madeline was blue last time, Jefferson can be blue this time. Because I'm the Dad, I get the leftovers. Which has yet to be blue.

Now if I'm magnanimous with my children, always letting them be blue, you might ask why I don't do the same for the Democrats. The reason is simple: the use of color influences the way the public perceives the political parties. And unlike Candyland, where color has no bearing on the outcome of the game, the public's perceptions of the political parties influences real elections. I don't care if I win Candyland, but I do care if Republicans win elections.

Now before you decide that I'm a crazed kook, only halfway through my first post, let me unequivocally state that I do not believe Dole would have beaten Clinton in 1996 but for the fact that he bore the extra burden of representing the Red Party. I concede that any actual color-effect is slight.

But color does matter. As you drive around town over the next couple of days, notice the color schemes on campaign posters. It is not simply coincidence that wherever you are in the country, you see very few turquoise or lavender political posters. Mostly, you will see blue. Medium-dark blue, to be more precise. The last four big presidential campaigns, Clinton/Gore, Dole/Kemp, Gore/Lieberman, and Bush/Cheney, all used a very similar shade of blue. Both gubernatorial candidates are using the same blue in Maryland. So, I'm sure, are most of the major candidates where you live. Anytime you see a yellow sign, it's due to one of three reasons: 1- they're running for school board, 2- it's their first and last election, or 3- they can't afford to produce many signs so they have to ensure that the few they do produce stand out in the sea of blue signs. The big campaigns use blue because blue, besides being most people's favorite color, is suggestive of resolve, soberness, authenticity, and level-headedness.

Red, by contrast, is the color of tempestuousness, passion, radicalism, zealotry, and irrationality.

These characteristics align perfectly with the ways the media's caricatures of the parties. As is convincingly shown in the latest Public Interest, the press is much more likely to highlight fringe elements (read: Red) within the Republican than it is within the Democratic party. Perhaps the media's use of red for Republicans helps explain why the article's authors write, "survey results indicate that the more attention a person pays to the national political news media, and especially to television news, the more likely is that individual to believe that Christian fundamentalists are ideologically extreme and politically militant."

Republican = Red = Extreme = Red = Militant = Red = Fundamentalist

I don't pretend to know how the current color arrangement came to be, but it's unthinkable that the graphic designers involved didn't realize the implications of the decision.

Regardless of how it started, to objectively and impartially cover the political parties, the press must rotate the parties' colors. From experience, I know my kids would persuasively argue that justice demands Republicans get a turn as blue as long as was the Democrats'.